Email privacy at last?

Shielding communications in the digital age

December 05, 2012

The David Petraeus sex scandal, which occurred after an FBI investigation of allegedly harassing emails sent to a Florida woman he knew, was a bracing reminder to Americans that anything they send online can eventually become public. But people may not understand just how little protection they have from the eyes of law enforcement agencies.

It is true, of course, of messages sent by U.S. mail or communicated orally over the phone. For police to get access to those, they need to persuade a judge to issue a search warrant based on probable cause that it will provide evidence of a crime.

But electronic communications are different. Law enforcement agencies don't need a warrant to read emails unless they have not been opened by the recipient and are fewer than 180 days old. In some cases, prosecutors merely have to show some relevance to an investigation. In many, prosecutors can obtain emails on a whim.

In a society where letters and postcards have largely been supplanted by emails and Facebook postings, that policy means a large and continuing loss of personal privacy.

The Fourth Amendment guarantees "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." That reference to "papers" was pretty all-encompassing when the Constitution was written. Today, though, things that would have been committed to paper are captured digitally. So to preserve the practical sphere of privacy that Americans have enjoyed for more than two centuries, the law needs updating to reflect technological advances.

That's the goal of a measure approved in November by the Senate Judiciary Committee. Sponsored by Chairman Patrick Leahy, D-Vt., it would compel prosecutors and police to get search warrants before ransacking inboxes or scrutinizing Facebook messages. "After decades of the erosion of Americans' privacy rights on many fronts," said Leahy, "we finally have a rare opportunity for privacy protection."

Some law enforcement groups fear the change will impede the pursuit of criminals, but they were able to fight crime and respect privacy back in the days before electronic communications were invented. This merely restores the balance that existed for most of our history.

And the evidence that the warrant requirement will hamstring cops is mostly conjectural. As The Associated Press reports, federal agencies in four states have been working under the same mandate since 2010 because of an appeals court ruling.

"I don't see anything that's going to seriously concern law enforcement in terms of our ability to request warrants and to get the contents of the material we need," Joseph Cassilly, former president of the National District Attorneys Association, told AP.

Any warrant requirement is bound to spare some criminals from being caught or punished. But that's the inherent price of the Fourth Amendment and our respect for the right of individuals to communicate without the fear of Big Brother reading and listening every moment.

That freedom was vital before the rise of computers — and still is. It's time Congress recognized what needs to be done to preserve it.